U.S. v. Schreane, No. 01-6382.

• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)
• Writing for the Court: Siler
• Citation: 331 F.3d 548
• Decision Date: 09 June 2003
• Docket Number: No. 01-6382.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Clarence D. SCHREANE, Defendant-Appellant.

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331 F.3d 548 UNITED STATES of America, Plaintiff-Appellee,
v.
Clarence D. SCHREANE, Defendant-Appellant. No. 01-6382. United States Court of Appeals, Sixth Circuit. Argued May 6, 2003. Decided and Filed June 9, 2003.

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Steven S. Neff (argued and briefed), Assistant United States Attorney, Chattanooga, TN, for Plaintiff-Appellee.

R. Dee Hobbs (argued and briefed), Bell & Hobbs, Chattanooga, TN, for Defendant-Appellant.

Before KRUPANSKY, SILER, and GILMAN, Circuit Judges.

OPINION

SILER, Circuit Judge.

Defendant Clarence David Schreane was convicted of being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(e) and was sentenced to a 327-month term as an armed career criminal. He argues that his conviction cannot stand because (1) he was denied his Sixth Amendment right to a speedy trial; (2) there was insufficient evidence to support his conviction; and (3) he was denied his Sixth Amendment right to confront a witness. He does not challenge his sentence. For the reasons that follow, we AFFIRM.

I. BACKGROUND

On December 17, 1997, Police Officer Charles Topping of the Chattanooga Police Department received a dispatch regarding a burglary in progress and was told to be on the lookout for two black men in a small red car. While en route to the scene, he observed a vehicle matching the description of the car parked on the side of the road not far from the location of the burglary. Two individuals were in the vehicle.

Topping pulled up behind the vehicle and noticed that the occupants appeared to be arguing with one another. Immediately, the driver of the car, Willard Duckett, who is Schreane's nephew, quickly exited the vehicle and started toward Topping while yelling, "He has a gun," referring to Schreane, the passenger in the car. Topping drew his weapon and advised Duckett to approach slowly. Duckett appeared very nervous, scared, excited, and anxious to get away from the red vehicle. In fact, Duckett almost pushed Topping down trying to get away from the car. During this time, Duckett was speaking with a raised high-pitch tone of voice. Topping did not see Duckett drop or throw anything on the ground or kick anything underneath the vehicle as he was exiting the car.

Topping tried to calm Duckett down and brought him back to the patrol car where he searched him. While his attention was on Duckett, Topping also had to watch Schreane, who remained in the passenger side of the car. In a few minutes, Officer Ervin Morgan arrived at the scene. He was warned by Topping that "There's a gun somewhere," at which point he drew his firearm and approached the parked vehicle. As Morgan proceeded toward the passenger side of the vehicle, he saw Schreane nervously shifting around inside the car. He also observed a firearm lying on the grass beside the closed passenger door. Although Morgan initially testified that the passenger window was rolled down when he approached, he later indicated that he could not remember the position of the window. Photographs taken by crime scene investigators showed that at the time of the extraction, the window was rolled up. Neither Morgan nor Topping saw the gun in Schreane's possession.

After Schreane exited the vehicle, Morgan arrested him and placed him in the back of his patrol car. Topping then spoke with the defendant in order to obtain

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identifying information. Schreane asked if he could get the gun back and return it to his girlfriend, Shirley Torregano. He also stated that his girlfriend was not aware that he had her gun. Schreane further stated that the vehicle belonged to Torregano, which proved to be true. Schreane does not suggest that during his conversation with law enforcement he denied knowledge of the existence of the gun, that he accused Duckett of being the true possessor of the gun, or that he denied dropping the gun in the grass.

Torregano testified that she frequently loaned Schreane the car, but that on the day in question, she loaned the vehicle to Duckett in order for him to pick up the defendant from a bus station. She also testified that the firearm belonged to her and that she frequently kept it in her car for protection because she worked a night job in an unsafe neighborhood. According to Torregano, she told no one that she owned the firearm. At trial, the prosecution challenged her testimony regarding where she kept her firearm. It presented testimony from Sergeant Tara Pedigo, who questioned Torregano about the firearm found at the scene. Torregano told her that she kept the gun in a box in her home. Torregano never indicated to Pedigo that she kept the firearm in her car.

The weapon located beside the vehicle was later determined to be a .38 caliber derringer loaded with two rounds of ammunition. Crime scene investigators were unable to identify any fingerprints on the firearm.

Following the police investigation, Schreane was charged by the State of Tennessee for his participation in the burglary, as well as other unrelated state crimes. He was taken into state custody pending resolution of those offenses. On July 28, 1998, while still in state custody, a federal grand jury returned an indictment charging Schreane with being an armed career criminal in unlawful possession of a firearm, violations of 18 U.S.C. §§ 922(g)(1) and 924(e). Thereafter, the United States lodged a federal detainer against Schreane on July 30, 1998, with instructions to provide a copy of the detainer to Schreane.

On November 9, 1999, Schreane pled guilty to numerous violations of state law and received a nine-year prison sentence. Following sentencing, he was transferred to a state penal institution on November 17, 1999, but the United States Marshal's Service was not notified of the disposition of his state case until July 20, 2000. When finally notified, the government immediately placed a second federal detainer, dated July 21, 2000, against Schreane. On July 27, 2000, the second detainer was personally served on Schreane, who signed for the detainer without demanding a speedy trial.

On October 17, 2000, the government filed a petition for writ of habeas corpus ad prosequendum, and the defendant was arraigned on the instant charges on November 15, 2000. On December 18, 2000, approximately four months and three weeks after being personally served with the second detainer, Schreane filed a motion to dismiss the indictment on speedy trial grounds. The district court denied the motion. On January 8, 2001, over two years and five months after the indictment, Schreane's trial commenced.¹ He was convicted and subsequently sentenced to a 327-month term, to run consecutively with Schreane's nine-year state prison sentence.

II. ANALYSIS

A. Speedy Trial

Schreane contends that the twenty-nine month delay between his indictment

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and trial violated his Sixth Amendment right to a speedy trial.² "In determining whether a defendant's right to a speedy trial has been violated, an appeals court reviews questions of law de novo and questions of fact under the clearly erroneous standard." United States v. Smith, 94 F.3d 204, 208 (6th Cir.1996) (citation omitted), cert. denied, 519 U.S. 1133, 117 S.Ct. 997, 136 L.Ed.2d 877 (1997).

The Sixth Amendment guarantees that, "[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial." U.S. Const. amend. VI. The Supreme Court has articulated four factors that must be balanced in a speedy trial analysis. See Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). These factors are (1) whether the delay was uncommonly long; (2) the reason for the delay; (3) whether the defendant asserted his right to a speedy trial; and (4) whether prejudice resulted to the defendant. Id.; see also Doggett v. United States, 505 U.S. 647, 651, 112 S.Ct. 2686, 120 L.Ed.2d 520 (1992) (restating and applying the four-factor test announced in Barker). This test was designed to be a "functional" one; it was formulated to deal with the "vague," "amorphous," and "slippery" nature of the right in question. Barker, 407 U.S. at 521-22, 92 S.Ct. 2182. Thus, consistent with this inquiry, no one factor constitutes a "necessary or sufficient condition to the finding of a deprivation of the right of speedy trial." Id. at 533, 92 S.Ct. 2182. "Rather, they are related factors and must be considered together with such other circumstances as may be relevant." Id.

1. Length of Delay

The first factor serves a dual function. First, it is a threshold requirement; if the delay is not uncommonly long, judicial examination ceases. See Doggett, 505 U.S. at 652, 112 S.Ct. 2686 (stating that "by definition, [a defendant] cannot complain that the government has denied him a `speedy' trial if it has, in fact, prosecuted his case with customary promptness"); see also Cain v. Smith, 686 F.2d 374, 381 (6th Cir.1982) (explaining that the length of the delay serves as a "triggering mechanism"). Once this threshold is satisfied, this first factor must be considered as one factor among the several in the speedy trial analysis. See Doggett, 505 U.S. at 652, 112 S.Ct. 2686. A delay approaching one year is presumptively prejudicial. Id. at 652 n. 1, 112 S.Ct. 2686. In the instant case, the district court found, and the government does not challenge, that a twenty-nine month delay is uncommonly long. Accordingly, we proceed to a full-fledged speedy trial inquiry.

2. Reason for the Delay

The second Barker factor focuses on the reason for the delay. Not all delays are susceptible to equal blame. See Barker, 407 U.S. at 531, 92 S.Ct. 2182 (explaining that "different weights should be assigned to different reasons"). Governmental delays motivated by bad faith, harassment or attempts to seek a tactical advantage weigh heavily against the government. See id.; see also United States v. Marion, 404 U.S. 307,...